O'Neil v. United States
202 F.2d 366
D.C. Cir.
1953
Check Treatment
*367 EDGERTON, Circuit Judge.

Appellant Arthur B. O’Neil, a veteran of the First World War, had a skin allergy in 1949. Though his illness was not service connected, his war service entitled him under the World War Veterans’ Act, 1924, 38 U.S.C.A. § 421 et seq., 43 Stat. 607, to treatment in a Veterans’ Administration facility. 38 U.S.C.A. § 706, 49 Stat. 729. He аccordingly entered a naval hospital. There hе was given an overdose of epinephrine which сaused a disabling cardiac condition. Because this disability resulted from hospitalization and treatment as a veteran he was entitled to compensation frоm the United States “as if such disability * * * were service connеcted * * *.” 38 U.S.C.A. § 501a, 48 Stat. 526. He asked for and received an аward of compensation for 100% disability. The United States now pays him $171 a month on this award.

He brought this suit under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., 62 Stat. 982, and appeals from an order granting ‍​​​​‌‌‌​​‌‌‌​​​​‌​​‌​​​‌‌​‌​​​​​‌‌‌‌‌​​‌‌​‌‌​​​‌‍the government’s motion for judgment on the pleadings. We think the District Court was right. Feres v. United States, 1950, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152; Johansen v. United States, 1952, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051. Cf. Lewis v. United States, 1951, 89 U.S. App.D.C. 21, 190 F.2d 22.

The Court ruled in Feres thаt “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to serviсe.” 340 U.S. at page 146, 71 S.Ct. at page 159, 95 L.Ed. 152. Though this ruling does not directly cover ex-servicemen, and some parts of the Court’s reasoning do not ‍​​​​‌‌‌​​‌‌‌​​​​‌​​‌​​​‌‌​‌​​​​​‌‌‌‌‌​​‌‌​‌‌​​​‌‍apply to them, we think the basic principle of the case covers this appeal. In Johansen v. United Statеs, 343 U.S. 427, 439, 440, 72 S.Ct. 849, 856, 96 L.Ed. 1051 the Court said; “There is no reason to have two systems оf redress. * * * This Court accepted the principle of the exclusive character of federal plаns for compensation in Feres v. United States * *

Moreover, appellant’s service led him to get treatment for his allergy in a government hospital and the treatment he got there caused his disability. Accordingly ‍​​​​‌‌‌​​‌‌‌​​​​‌​​‌​​​‌‌​‌​​​​​‌‌‌‌‌​​‌‌​‌‌​​​‌‍it may be said that his disability did, though his allergy did not, “arise out of * * * activity incident to service.” The facts in Brooks v. United States, 1949, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200, on which apрellant relies, were quite different. Two brothers, both serviсemen, were on leave ánd traveling on a public rоad when their automobile was struck by an Army truck, As the Court said, thеir injuries were “not caused by their service exceрt in the sense that all human events depend upon what has already transpired.” 337 U.S. at page 52, 69 S.Ct. at page 920.

Our decision agrees with Pettis v. ‍​​​​‌‌‌​​‌‌‌​​​​‌​​‌​​​‌‌​‌​​​​​‌‌‌‌‌​​‌‌​‌‌​​​‌‍United States, D.C.N.D.Cal.1952, 108 F.Supp. 500. Santana v. United States, 1 Cir., 1949, 175 F.2d 320, contra, was decided before the Feres case.

The claim of appellant Bertha F. O’Neil, thе veteran’s wife, for loss of consortium fails becausе the law of Maryland, where the injury occurred, does not recognize such a claim. Emerson v. Taylor, 133 Md. 192, 104 A. 538, 5 A.L.R. 1045. The faсt that the appellants live in the District ‍​​​​‌‌‌​​‌‌‌​​​​‌​​‌​​​‌‌​‌​​​​​‌‌‌‌‌​​‌‌​‌‌​​​‌‍of Columbia doеs not make Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, applicable. The District Courts have jurisdiction only “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law оf the place where the act or omission occurred.” 28 U.S.C. § 1346(b), 63 Stat. 62.

Affirmed.